Deputy Chief Justice of Uganda, Lady Justice Elizabeth Mpagi Bahigeine.
Like Uganda, Kenya is set to have a woman Deputy Chief Justice. The position of Deputy Chief Justice is now a substantive position under the Constitution. Apart from the Chief Justice, it is the only other judicial office which requires approval of the legislature. While all focus has been on candidates of the office of Chief Justice, the position of Deputy is equally important. Firstly, the holder thereof will be called upon from time to time not only to act as Chief Justice but also to preside over the Supreme Court. Secondly, as a substantive office holder he or she will be expected to be a leader in his or her own right.
I almost have no doubt in my mind that the holder of this position will be the next Chief Justice and the first woman Chief Justice of Kenya. Perhaps it was strategic then, than most applicants for that position were women. Those shortlisted for this position are Justices Mary Ang'awa, Roselyn Nambuye, Hannah Okwengu, Martha Koome and Mary Kasango, Nancy Baraza, Gladys Boss Shollei.
As I said before evaluating judges without lack of objective criteria is a hazardous task fraught with biases, political and otherwise. The applicants are all highly qualified and the JSC will have a hard time nominating the one of them to that position.
These are my thoughts on the candidates though.
My first experience with Justice Ang'awa was when she was posted to Nairobi and allocated the running down list. Within a year, I had no High Court matters pending. Her integrity is beyond reproach and her capacity for hard work is second to none. Her relations with members of the bar has been strained at times. I doubt she will make either Chief Justice or deputy. While she has the ability to go through her cases with speed most of her decisions lack precedential value. I just don't think she has the intellectual stuff to preside over the Supreme Court.
Justice Nambuye is known to be hardworking. She was subject of the 2003 purge. The complaint in her case was as a result of delay in writing judgments, a malaise that sometimes afflicts even the best of judges. It transpired that in fact, that at the material time she had been unwell during her time at the Machakos High Court. She was reinstated by the President without the Tribunal completing its report.
Justice Okwengu is regarded as a no-nonsense judge. She has a long history within the judiciary and has was appointed Assistant Director of the defunct Kenya Anti-Corruption Commission (KACA). She was appointed a judge after it was disbanded by judicial fiat.
Her well known decisions include the Inter-sex Case and the Torture Case where she awarded damages to the Nyayo House Torture victims. She also dismissed the case where the applicant sought to challenge the promulgation of the Constitution.
During the consultation between the President and the Prime Minister, she was considered for the post of Deputy Chief Justice.
Justice Martha Koome
Justice Koome was part of the core of legal professionals that were actively involved in the fight for democracy. She was also the head of FIDA and during her time in legal practise was known for her agitation of gender issues. As a judge she is hardworking and solid intellectually.
She recently held that the civil jail for debtor is unconstitutional.
Justice Mary Kasango
Since her transfer from the Milimani Commercial Court, Justice Kasango has been out of the limelight. She is considered hardworking and very capable judge.
The case of Nancy Baraza and Other vs Charles Nyachae and Others will forever be a stain on the career of Nancy Baraza. In that case a group of pro-government lawyers successfully sought and obtained an injunction to restrain the Law Society of Kenya from engaging in politics! She has however gone forward to atone for this as a Commissioner for the CKRC. She is currently vice-chairperson of the Law Reform Commission. These credentials will put her in good stead for the job.
Gladys Boss Shollei
Gladys is the Deputy Chief Electoral Officer at the Interim Independent Electoral Commission of Kenya. Her resume speaks for itself. I think the Council for Law Reporting of Kenya owes its success largely to her leadership as the first Chief Executive. Her judicial skills though remain untested.